Family Provision

• Author: Karen Nunez-Tesheira
• Pages: 467-498

Family Provision / 467

INTRODUCTION

One of the fundamental principles governing the law of testate succession

is that of testamentary freedom—the right of a testator to dispose of his

property as he wishes. Indeed in most of the Caribbean territories a testator

still enjoys this unrestricted testamentary freedom.

However in Barbados, Guyana, Jamaica, Trinidad & Tobago,and most

recently, The Bahamas1 this freedom is not an unfettered one. In these

jurisdictions, qualifying members of the deceased’s family circle have been

given the statutory right to apply to the court for financial provision out of

the deceased’s net estate in the following circumstances:

(a) in cases of testacy — where the deceased’s will has failed to make

any or any adequate provision for them;

(b) with the exception of The Bahamas, in cases of intestacy — where

the statutory provisions governing distribution of an intestate’s estate

fail to do so; and

(c) with the exception of The Bahamas, in cases of partial intestacy/

testacy — where the combined effect of the deceased’s will and the

laws relating to intestacy fail to do so.

This statutory entitlement is a powerful weapon in the hands of an applicant

for it effectively allows the court, in cases of intestacy, to vary the statutory

rules of distribution and in cases of testacy, to virtually rewrite the deceased’s

will.

But the court’s jurisdiction to do so is as a general rule exercised ‘with

great circumspection and to a limited extent.’2As Wooding CJ observed in

his judgment in Lewis v Baker:3

The jurisdiction of the Court is limited to intervention, when but only when .

. . it can express the affirmative opinion that he (the deceased) did not make

reasonable provision for the applicant.

26

Family Provision

468 / Probate Practice and Procedure

PERSONS WHO MAY APPLY FOR FINANCIAL PROVISION

1. SPOUSES

A. Lawful Spouse4

Guyana, Jamaica, The Bahamas and Trinidad & Tobago

In the above-mentioned territories, the applicant who has gone through a

ceremony of marriage with the deceased is prima facie a lawful spouse and

entitled to apply for financial provision in that capacity. However, the

following should be noted:

(a) Valid Marriage — the party claiming relief must have been a party

to a valid marriage in which case a marriage certificate is accepted as

prima facie proof thereof;

(b) Voidable Marriage – a party to a voidable marriage may apply

provided the marriage was not annulled during the deceased’s

lifetime.

(c) Void Marriage — a party to a void marriage may be entitled to

family provision if he/she can prove that:

(i) the marriage was entered into in good faith;

(ii) the marriage was not annulled or dissolved during the lifetime

of the deceased;

(iii) the deceased died domiciled within the jurisdiction in which

the application is made;

(iv) the applicant had not remarried during the lifetime of the

deceased.

Living Apart Twelve Months or More

The Bahamas

Pursuant to s.12(2) of The Inheritance Act 2002, where a husband and

wife have been living apart for a period of 12 months or more, the court

may refuse to make an order for financial provision if it considers that in all

the circumstances of the case it is just and reasonable to refuse such an

order.

Family Provision / 469

B. Former Spouse5

Trinidad & Tobago

A former spouse may apply to the court for reasonable provision out of the

deceased’s net estate on the ground that the deceased did not make

reasonable provision for his or her maintenance. This is provided that:

(a) he/she had not remarried during the deceased’s lifetime or;

(b) the marriage had not been annulled or dissolved.

Jamaica

A former spouse who has not remarried may also apply for financial provision

out of the deceased’s net estate. But this entitlement is of more restrictive

application in Jamaica, compared to Trinidad & Tobago. According to

s.4(2)(d) of the Inheritance (Provision for Family and Dependants) Act,

1993, a former spouse qualifies if he or she:

was being maintained wholly or partly or was entitled under an existing order of

a court of competent jurisdiction or under an agreement between the parties to

be maintained wholly or partly by the deceased immediately before his death

C. Statutory Spouse/ Cohabitant

Statutory Spouse

•Guyana

In Guyana, for the purposes of the Family and Dependants Provision Act,

22/1990 a reference to a spouse includes a common law spouse within the

defined statutory limits of the Act.6

This statutory recognition of the common law spouse in Guyana, is

especially significant in cases of intestacy because in Guyana as is the case

in all the Caribbean jurisdictions, save Barbados and Jamaica and more

recently Trinidad & Tobago, a common law spouse has absolutely no rights

of inheritance on the intestacy of his/her common law spouse.

Prior to the passage of this ground-breaking legislation a survivor’s sole

recourse in cases of common law unions was to apply to the court for a

declaration of a resulting trust. Even so, this relief would be granted only if

the court was satisfied that there was sufficient evidence of a common

intention—an intention at the time of acquisition of the property, (the